Daily Media Links 5/13

South Dakota’s ban on out-of-state money for ballot question campaigns is unconstitutional, a federal judge ruled Thursday in blocking state officials from enforcing the new law.

U.S. District Judge Charles Kornmann ruled that the first-in-the-nation measure approved by South Dakota voters in November violates First Amendment political speech rights and also violates the Commerce Clause by interfering with interstate transfer of money to ballot question campaigns in South Dakota…

“Today’s ruling is a big win for free speech. Government cannot ban speech because it dislikes who is speaking. South Dakotans have the right to hear messages from all Americans,” said legal director Allen Dickerson of the Institute for Free Speech , a Virginia-based organization that along with former South Dakota Attorney General Marty Jackley represented a coalition of trade associations, an advocacy group and a former South Dakota resident now living in Florida in challenging the law.

The South Dakota Newspaper Association, South Dakota Retailers Association, South Dakota Broadcasters Association and Americans for Prosperity were among those challenging the measure…

Executive director David Bordewyk of the South Dakota Newspaper Association said his organization joined the lawsuit because of its concern that the measure violated the First Amendment.

“It’s not something we took lightly, especially considering that 56 percent of the voters in last year’s election approved” the measure, Bordewyk said in a statement to the Yankton Daily Press & Dakotan. He said the judge “made it clear today that (the measure) is not constitutional.”

In the early years of the Obama administration, newly formed conservative groups seeking tax-exempt status were subjected to lengthy delays and inappropriate demands for information…

Then there was the John Doe fiasco in Wisconsin, which saw conservative activists subjected to pre-dawn police raids as part of a sprawling investigation ultimately shut down by the state supreme court…

More recently, conservatives and libertarians have criticized states like California for demanding nonprofits turn over supporters’ names and addresses as a precondition for fundraising in the state. A lawsuit against California revealed that the state had carelessly put the private information of Americans who donated to any registered charity online, without password protection…

Now many left-leaning groups are also speaking out against government harassment, in response to U.S. Customs and Border Protection’s (CBP) clumsy efforts to track and monitor activists, attorneys, and journalists at the U.S.-Mexico border.

CBP, the FBI, and other federal agencies reportedly constructed a secret database of journalists, activists, and attorneys working on immigration issues at the border. The agencies used the database to track and detain individuals who advocated for migrants’ rights, not those who committed crimes…

If law enforcement has a legitimate reason to arrest any of these people, they can. But it is unconstitutional for the government to interfere with First Amendment rights on the basis of viewpoint, and that is what appears to be happening. Now a broad coalition of 103 civil liberties and press rights organizations, including many left-leaning groups, are calling on the Department of Homeland Security (DHS) to cease any targeting of Americans for their First Amendment-protected speech.

The Honest Ads Act is back. The bill, which was originally introduced in 2017 but didn’t gain much traction, was reintroduced in both the House and the Senate on Tuesday. The lead sponsors in the upper chamber are Sens. Amy Klobuchar (D-Minn.), Mark Warner (D-Va.) and Lindsey Graham (R-S.C.) (who replaced the late-Sen. John McCain as a Republican co-sponsor), while the House effort is being spearheaded by Reps. Derek Kilmer (D-Wash.) and Elise Stefanik (R-N.Y.)…

But the path for the Honest Ads Act to become law still remains steep. Even if it gets out of the House, the Senate has thus far shown little appetite for campaign finance-related legislation (Senate Majority Leader Mitch McConnell expressed skepticism about the law in 2017), while some critics say the bill regulates the speech of Americans. And while some in the industry have voiced support for the law – notably Facebook – others have conspicuously not backed it, namely Google. (Google did not return a request for comment.) The Internet Association – a trade group which includes major technology companies like Microsoft, Amazon and Google – offered a counterproposal to the Honest Ads Act in 2017, agreeing that there needs to be more transparency but “subtly hint[ing] it isn’t a fan of everything that’s been floated on Capitol Hill,” Recode wrote at the time. The group did not return a request for comment from Score.

Digital political ad consultants also raised technical concerns about the Act, worrying about its technical implementation. Google pulled out of political advertising in Washington state and Canada after each jurisdiction passed its own online disclosure laws, citing, in part, technical hurdles.

When voters want to change how they’re being governed, the existing legal framework should make it easy for them to do so-or at least not get in their way. That’s what a group of concerned citizens from three cities in Washington state believed when they set out to reform unions. They tried to place their proposal on three municipal ballots, which involved collecting signatures from the relevant communities and filing them alongside the initiative.

State law seemed to require the cities to place these measures on the ballot or adopt them outright. None of the city councils did either of those things, so the citizens sued, arguing that the cities’ actions were illegal. The nonprofit Freedom Foundation represented them pro bono (free of charge), but they were unsuccessful: there were ultimately no campaigns for the ballot initiatives. Despite that legal failure and no election, unions filed a complaint against the Freedom Foundation for failing to disclose its pro bono legal work as a “campaign expenditure.”

The problem with labeling non-campaign legal work as a campaign expenditure is fairly clear: there can be no campaign-finance violation if there’s no campaign…

Campaign-finance laws exist to combat corruption, but a ballot initiative can’t be corrupted. It can’t offer a political favor in exchange for money or support. No matter what you do for it, it won’t love you back.

Washington’s attempt to redefine what a campaign is, and to broaden the idea of corruption to the point of incomprehensibility, all to justify punishing political activism should not go unchecked. Cato has partnered with the Institute for Free Speech in filing an amicus brief supporting the Freedom Foundation’s petition to the U.S. Supreme Court.

Despite the concerns of the ACLU and others, the momentum for HR1 and sweeping new disclosure requirements at the state level seems to be happening without regard for privacy concerns. There also seems to be an uncritical acceptance of the idea that more “transparency” always translates into less corruption or that a politician’s vote can readily be explained simply by examining the latest FEC report…

The result is that the entire debate on campaign finance regulations often begins and ends with internalized assumptions that may or may not be true. Even the language involved can be loaded. “I would not use the word disclosure and I would not use the word transparency. … Disclosure is for the government. Privacy is for private organizations and individuals,” says attorney Eric Wang, who authored a critical analysis of HR1 for the Institute for Free Speech. “I don’t necessarily buy in to this notion that this is all about disclosure and transparency. Because those are terms that are latent with positive connotations and they sort of stacked the deck in the debate of this issue.”

In 2009, Harvard professor Lawrence Lessig wrote a prescient New Republic essay, “Against Transparency,” about the limits of campaign finance disclosure. Lessig says he supports other aspects of HR1 and he’s even amenable to the idea of disclosing very large donations to nonprofits above a certain level, though he acknowledges there’s going to likely be disagreement over how sizable a contribution has to be before knowing about it is deemed to be in the public interest. But of HR1’s invasive disclosure requirements, such as listing the top five donors in every political ad, he says, “I think all of that is stupidly cumbersome and confusing and creates a chill that’s not really appropriate.”

The ban on out-of-state contributions to ballot measure campaigns was itself passed via ballot measure in 2018. With no opposition campaign, voters approved the measure by a slim margin in November…

The government has no legitimate interest in enforcing the ban, the lawsuit explains. Far from benefiting the people of South Dakota, the ban would harm them by removing valuable voices from debates about ballot measures. Many state issues have national or regional implications, and voters may wish to hear from non-state residents or businesses who will be affected by state policy. Voters may also wish to hear from national organizations with expertise in specific policy areas.

Contributions to ballot measure campaigns by Americans in other states create “no risk of giving [those who donate] control over an officeholder’s official duties and, therefore, do not give rise to quid pro quo corruption,” the complaint explains. Instead, banning out-of-state contributions prevents groups like the Sierra Club from supporting ballot measures to enhance environmental protections, and stops groups like the NRA from contributing to ballot measure campaigns that affect gun rights. The result is less speech and less information for voters.

Plaintiffs in the case are the South Dakota Newspaper Association, South Dakota Retailers Association, South Dakota Broadcasters Association, South Dakota Chamber Ballot Action Committee, Thomas Barnett, Jr., and Americans for Prosperity.

The Institute for Free Speech filed this suit to defend robust debate about ballot measures.

In his written decision, Judge Charles Kornamnn agrees with plaintiff’s arguments that IM24 violated First Amendment rights.

“The total ban on certain out of state contributions cannot withstand scrutiny unless the defendants can articulate a compelling reason for the ban. As a matter of law, whatever test is applied results in a finding that IM 24 is unconstitutional,” Judge Kornamnn wrote.

Thursday’s ruling is a permanent injunction which stops the planned July 1 implementation of IM24. The State must now determine if it will appeal the decision to the U.S. Eighth circuit court of appeals…

“Today’s ruling is a big win for free speech. Government cannot ban speech simply because it dislikes who is speaking. South Dakotans have the right to hear messages from all Americans,” said Institute for Free Speech Legal Director Allen Dickerson.

The official statement from the Attorney General’s office Thursday afternoon follows:

“We respect the decision of the Court. We are reading the decision and are examining the avenues available to our office that best coincide with protecting the best interests of the people and the State of South Dakota.”

A federal judge has ruled unconstitutional South Dakota Initiated Measure 24, a state law which would have banned Americans from other states from contributing to ballot measure campaigns in South Dakota. The Institute for Free Speech and former South Dakota Attorney General Marty Jackley represented a coalition of trade associations, an advocacy group, and a former South Dakota resident in a challenge to the law.

“Today’s ruling is a big win for free speech. Government cannot ban speech simply because it dislikes who is speaking. South Dakotans have the right to hear messages from all Americans,” said Institute for Free Speech Legal Director Allen Dickerson.

Plaintiffs in the case include the South Dakota Newspaper Association, South Dakota Retailers Association, South Dakota Broadcasters Association, South Dakota Chamber Ballot Action Committee, Thomas Barnett, Jr., and Americans for Prosperity. The law was also challenged by SD Voice and Cory Heidelberger. The judge’s ruling applies to both cases.

The law was ruled unconstitutional under both the First Amendment and the Commerce Clause.

“The evidence presented in this case demonstrates how important out-of-state contributions are for the ballot question committees to pursue political speech. The State cannot enact restrictions that so completely prevent those pursuing unpopular laws from amassing the resources necessary for effective advocacy,” wrote Judge Charles B. Kornmann.

The state will now have the opportunity to appeal the ruling. The Institute for Free Speech is committed to ensuring that every American’s First Amendment right to free political speech is respected across the country.

Three groups filed a federal lawsuit Thursday challenging a new Tennessee law that would put substantial requirements in place for groups that participate in voter registration efforts.

The suit was filed in the U.S. District Court for the Middle District of Tennessee by the American Civil Liberties Union (ACLU) of Tennessee, Campaign Legal Center, and Fair Elections Center on behalf of the League of Women Voters of Tennessee, the American Muslim Advisory Council, the Mid-South Peace and Justice Center, Rock the Vote, and Spread the Vote…

The law in question, signed by Gov. Bill Lee last week, lists a slew of requirements for those participating in voter registration efforts and penalties for those who don’t comply.

Some of the requirements include providing the coordinator of elections with information about the drive prior to holding it, completing a training, and filing a sworn statement stating an intention to obey the laws and procedures pertaining to the process.

The law also creates civil and criminal penalties to groups or individuals who turn in more than 100 “deficient filings.”

The organizations who filed the lawsuit maintain that the law violates the freedoms of speech and association, due process, and the right to vote under the First and 14th Amendments.

“This is a lawsuit challenging strict, unnecessary, and irrational restrictions on community-based voter registration speech and activity,” the complaint reads. “Plaintiffs bring this action to prevent the enforcement of a new Tennessee law that unconstitutionally burdens and chills there core political speech and associational rights.”

The bill, titled the Honest Ads Act, was introduced in 2017 and proposes new disclosure rules for paid political ads on the internet, requiring those who place ads to reveal to the public who they are, how much they paid, who they were targeting with ads, and more.

It was officially re-introduced on May 9…

To many conservatives, the bill is a vehicle for a vast expansion of political speech regulation, not a novel new way to counter election interference…

On Thursday, Graham told The Daily Beast he was aware of conservatives’ reservations with his support of the bill and said they had legitimate points. “We’re going to look at their concerns and try to accommodate them,” Graham said.

The goal of the legislation, Graham said, is to make sure that if you see an ad on Facebook or elsewhere, you can be sure it’s “not some Russian fake ad.”

“To the extent that it tries to redesign campaign finance law,” he said, “I do not support that.” …

Lee Goodman, a Republican former commissioner of the Federal Elections Commission, tied Graham’s stand to McCain in another way. “If you want to look back to some of the political problems that Sen. McCain had with the right, it had as much to do with his position on First Amendment rights and McCain-Feingold as any other policy position,” Goodman said…

Even though Graham said he is open to changes to the legislation, Goodman told The Daily Beast that the framework for it is totally broken.

“I can tell you this: grassroots conservative groups are going to be upset with Sen. Graham for forcing them to disclose who they are and where they are anytime they want to speak about an issue.”

The White House has implemented new rules that it says will cut down on the number of journalists who hold “hard” passes, the credentials that allow reporters and technicians to enter the grounds without seeking daily permission.

The new policy has been met with some confusion and even worry among journalists, some of whom suspect that the ultimate aim is to keep critics in the press away from the White House and President Trump.

White House press secretary Sarah Sanders explicitly denied that, saying the changes were prompted by security concerns, not to punish journalists. “No one’s access is being limited,” she said Wednesday night.

Under procedures announced in March and implemented over the past few weeks, journalists will qualify to renew their hard passes only if they have entered the White House grounds at least 50 percent of the time in the 180 days before renewal, effectively once every other day. If they fall short of this, their hard passes will not be renewed.

A nonrenewal doesn’t preclude journalists from entering the White House entirely, but it does subject them to a more cumbersome process. Without a hard pass, they must apply each time they want access on a daily, weekly or six-month basis. Hard passes are valid for two years.

Sanders said the new measures were prompted by the U.S. Secret Service’s concern about the proliferation of hard passes, particularly over the past three years. It’s unclear exactly how many journalists hold hard passes, but White House officials say there could be as many as a thousand in existence.

The Salt Lake Tribune has launched an effort to keep the 148-year-old newspaper in business for the long term by turning it into a nonprofit, funded by donations to a newly created foundation.

The Tribune confirmed late Tuesday online that attorneys for current owner Paul Huntsman have “approached the IRS about changing the Tribune from a privately owned business to a community asset.”

Details of the arrangement have not been fully released, but what has been reported so far is that Tribune operations would be funded through an endowed nonprofit foundation. The newspaper would also change its status to a nonprofit 501(c)(3), governed by a community board.

In an interview Wednesday, Huntsman said he arrived at the nonprofit solution after examining the decline in the newspaper industry and finding a demand among foundations and other institutions eager to donate toward preserving community journalism.

“There’s literally hundreds of millions of dollars out there trying to find their way into supporting nonprofit news,” he said. “There’s a lot of foundations and institutions and individuals that see this coming and they want to support those news organizations that qualify.”

Other newspapers with a similar funding model include the Tampa Bay Times in Florida, the Philadelphia Inquirer and The Guardian in Britain, said Rick Edmonds, a business media consultant for the Poynter Institute, a nonprofit media studies institute that owns the Tampa Bay newspaper.

The Tribune’s proposal is unique in that the entire enterprise would become a nonprofit entity, he said.

“In the old days that was considered a little bit risky in terms of IRS approval,” Edmonds said. “I don’t really think that’s likely to be an issue” for the Tribune.